Tami L. Duvall v. State of Indiana ( 2012 )

FOR PUBLICATION FILED
Sep 06 2012, 9:29 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUSSELL A. JOHNSON GREGORY F. ZOELLER
HEATH Y. JOHNSON Attorney General of Indiana
SUZY ST. JOHN
Johnson, Gray & Macabee GEORGE P. SHERMAN
Franklin, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TAMI L. DUVALL, )
)
Appellant-Defendant, )
)
vs. ) No. 03A04-1108-CR-447
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1008-MR-1652
September 6, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Tami L. Duvall (“Duvall”) appeals her conviction for Murder, a felony,1 five of her six
convictions for Insurance Fraud, Class C felonies,2 and two of her three convictions for
Obstruction of Justice, Class D felonies.3 We affirm the conviction for Murder, but reverse
and remand with instructions to vacate five of the convictions for Insurance Fraud and two of
the convictions for Obstruction of Justice.
Issues
Duvall presents three issues for review:
I. Whether the trial court abused its discretion in admitting, pursuant to
the intent exception of Indiana Evidence Rule 404(b), testimony from
Duvall’s former boyfriend that he believed Duvall had poisoned him;
II. Whether the admission of evidence suggesting that Duvall stole a bottle
of morphine from her workplace is fundamental error; and
III. Whether Duvall committed only a single offense of Insurance Fraud
and a single offense of Obstruction of Justice.
Facts and Procedural History
Around 8:00 a.m. on August 24, 2007, Duvall placed a 9-1-1 call and told operator
Angela Lee that she had arrived home from work and found her estranged husband, Alan
Duvall (“Alan”), dead in a chair in the back yard. According to Duvall, Alan had come over
the prior evening to work on a malfunctioning air conditioning unit, became overheated, and
went outside to cool down. He had then slept outside. Duvall advised the operator that Alan
1
Ind. Code § 35-42-1-1.
2
Ind. Code § 35-43-5-4.5(a)(2).
3
Ind. Code § 35-44-3-4(a)(3) [now repealed]. Duvall concedes there is sufficient evidence to support a single
conviction for Insurance Fraud and a single conviction for Obstruction of Justice.
2
was a heavy drinker.
It was initially believed that Alan, who had a blood-alcohol content of 0.436%, died of
alcohol poisoning. However, several of Duvall’s and Alan’s family members contacted the
Columbus Police Department to convey their suspicions of foul play, prompting Detective
Marc Kruchten to request an autopsy of Alan’s body. Toxicology reports from the autopsy
revealed that Alan’s blood had a morphine concentration of 6,590 nanograms per milliliter
(approximately 100 times a therapeutic dose) and 3,229 nanograms per milliliter of
cyclobenzaprine, a muscle relaxer (approximately eight times a therapeutic dose). In light of
this evidence, Detective Kruchten began to conduct a homicide investigation.
The investigation revealed that Alan and Duvall, who had been separated for several
months, had significant financial problems. Creditors were continually calling the marital
residence to discuss delinquencies of various consumer accounts and past-due vehicle
payments. The marital residence was a subject of foreclosure proceedings, and college
tuition for Duvall’s youngest daughter had become due. Alan had only recently begun to
work with a glass installation company after several job changes, and Duvall’s earnings as a
certified nurse’s aide were inadequate for the mounting financial obligations.
A short time before Alan’s death, Duvall had encouraged Alan to procure a $100,000
life insurance policy and name her as the beneficiary. According to the couple’s friends and
acquaintances, Alan had been willing to do so because he believed it was a mortgage
insurance policy and he expected to move back in with Duvall as soon as her daughter moved
to college. The policy had been obtained through insurance agent Gary Ruddell (“Ruddell”),
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with whom Duvall was having an extra-marital affair. Although, according to Ruddell, he
advised Duvall not to attempt to collect on the policy because Alan died during the policy
“grace period” and it would look suspicious, (Tr. 2134) Duvall promptly made a claim for
payment.
Motorists Life Insurance did not immediately pay the claim, but instead assigned
Dennis Thomas (“Thomas”) to investigate the circumstances surrounding Alan’s death.
Thomas interviewed Duvall on multiple occasions, as did Detective Kruchten. Duvall
maintained that she had, upon arriving home from early morning home health duties,
observed Alan slumped in his backyard chair, and immediately called 9-1-1 and tried,
without success, to pull Alan from his chair to perform CPR.
Early in the investigation, Duvall suggested that Alan had been a drug user and had
“hid the other part of his life” from her. (Tr. 1806.) However, she claimed to lack specific
knowledge of what Alan had ingested or how he did so. Ultimately, in an interview with
Detective Kruchten and Bartholomew County Prosecutor William Nash, Duvall stated that
she had observed Alan take muscle relaxers of the brand name Flexeril, which he had
allegedly obtained from his cousin, Zillah Thompson (“Thompson”). She also described
seeing Alan, on the last evening of his life, in possession of an eye dropper type bottle with a
lavender-colored liquid inside (a description consistent with Roxanol, a liquid form of
morphine used for hospice patients). She admitted to disposing of empty medication and
alcohol bottles after Alan’s death.
Meanwhile, the police investigation uncovered several witnesses who contradicted
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Duvall’s claims of a prompt 9-1-1 call and Alan’s drug use. Also, one of Duvall’s former
employers, Miller’s Merry Manor, had documented the mysterious disappearance of a bottle
of Roxanol. Thompson admitted that she had left medications, including Flexeril, out in
plain view at her house, and that she had recently had a block party attended by the Duvalls.
However, those who knew Alan, including Thompson, insisted that Alan was opposed to
ingesting drugs.
On August 6, 2010, the State charged Duvall with Murder, six counts of Insurance
Fraud, and three counts of Obstruction of Justice. On April 5, 2011, Duvall’s jury trial
commenced. On April 22, 2011, the jury found Duvall guilty as charged. On May 25, 2011,
she received an aggregate sentence of sixty and one-half years (fifty-five for Murder, six
concurrent sentences of four years for Insurance Fraud, and three concurrent sentences of one
and one-half years for Obstruction of Justice). Duvall now appeals.
Discussion and Decision
I. Admission of Evidence – Alleged Prior Poisoning
Standard of Review
A trial court has broad discretion in ruling on the admissibility of evidence. Camm v.
State, 908 N.E.2d 215, 225 (Ind. 2009). We will reverse the trial court’s decision only when
it is clearly against the facts and circumstances before the court; moreover, even if the trial
court abused its discretion in admitting evidence, the judgment will be undisturbed if the
decision to admit evidence is harmless error. Granger v. State, 946 N.E.2d 1209, 1213 (Ind.
Ct. App. 2011). “Harmless error occurs ‘when the conviction is supported by such
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substantial independent evidence of guilt as to satisfy the reviewing court that there is no
substantial likelihood that the questioned evidence contributed to the conviction.’” Id.(quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)). Accordingly, we reverse only
when the record as a whole discloses that the evidence admitted in error likely had a
prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Id.Analysis
During the investigation following Alan’s death, police learned that Stephen Brown
(“Brown”), Duvall’s former boyfriend, had made a June 27, 2005 statement to Farm Bureau
Insurance special investigator John Moon (“Moon”) in the course of an investigation into
alleged theft of Duvall’s property. Brown denied that he had stolen Duvall’s property and,
during the interview, advised Moon of his suspicion that Duvall had tried to poison him with
tainted pudding immediately before requesting his signature and identifying information on a
life insurance policy.
Prior to trial, Duvall filed a motion in limine seeking to exclude Moon’s testimony
with regard to the alleged poisoning attempt. The State conceded that such testimony would
be inadmissible unless the defense opened the door to its admissibility.
In his opening statement, Duvall’s counsel advanced the defense theory that Alan had
killed himself. The factual scenario described by counsel essentially mirrored those facts
described by Duvall in her interview with Detective Kruchten and Prosecutor Nash; that is,
on the last night of his life, Alan was taking pills and had “an eye dropper full of morphine.”
(Tr. 300.) According to counsel, Duvall came home, found Alan dead, and “freaked out,”
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thus explaining the delay in calling 9-1-1. (Tr. 300.) The State argued that the defense had
opened the door to Brown’s testimony in order to contradict a particular factual scenario
portrayed by the defense and, after a bench conference, the trial court agreed.
Brown testified that, around Thanksgiving of 2004, Duvall had arrived at his home
with food, including a pudding that she insisted he must eat because her daughter had made it
especially for Brown. When Brown took a few bites of the pudding, it tasted “like aspirin
dissolving” and he felt “very out of it” for several hours. (Tr. 2318.) Duvall had also
brought a life insurance policy application, and claimed that she needed information from
Brown so that he could be the listed beneficiary. She asked Brown to sign and provide his
Social Security number. Brown did not do so, and Duvall left, taking with her the bowl and
plate that she had brought.
Duvall claims that the trial court admitted this evidence in violation of Evidence Rule
404(b), which provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident[.]
Evidence of extrinsic offenses poses the danger that the jury will convict the
defendant because he or she is a person of bad character generally, or has a tendency to
commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The rationale for the
prohibition against bad act and character evidence is that the jury is precluded from making
the forbidden inference that the defendant had a criminal propensity and therefore engaged in
the charged conduct. Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). When a defendant
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objects to the admission of evidence on the grounds that it violates Evid. R. 404(b), and
specific acts evidence is offered for “other purposes,” the trial court is to “determine that the
evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the
defendant’s propensity to commit the charged act … determine that the proponent has
sufficient proof that the person who allegedly committed the act did, in fact, commit the act
… and third, balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403.” Camm, 908 N.E.2d at 223.
In admitting Brown’s testimony, the trial court relied upon four cases where prior
conduct evidence had been admitted on the issue of intent after the defendant had presented a
particular factual claim to refute the charge. In Wickizer v. State, 626 N.E.2d 795 (Ind.
1993), the defendant charged with molesting a fourteen-year-old male had admitted touching
the victim’s penis but had insisted that his intention was not sexual gratification, but
providing assistance. The State had presented the testimony of two other witnesses regarding
their youthful sexual experiences with the defendant. Id. at 796. Our Supreme Court, in
reviewing the appellant’s claim that the evidence was admitted in violation of Evidence Rule
404(b), explained:
The intent exception in Evid. R. 404(b) will be available when a defendant
goes beyond merely denying the charged culpability and affirmatively presents
a claim of particular contrary intent. When a defendant alleges in trial a
particular contrary intent, whether in opening statement, by cross-examination
of the State’s witnesses, or by presentation of his own case-in-chief, the State
may respond by offering evidence of prior crimes, wrongs, or acts to the extent
genuinely relevant to prove the defendant’s intent at the time of the charged
offense. The trial court must then determine whether to admit or exclude such
evidence depending upon whether ‘its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
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misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.’ Evid. R. 403.
Id. at 799. The Court found “the admission of the prior conduct evidence to have been
error,” although reversal was not compelled because there existed substantial independent
evidence of guilt. Id. at 800.
In Koo v. State, 640 N.E.2d 95, 100 (Ind. Ct. App. 1994), trans. denied, a physician
charged with raping a patient during a medical appointment “introduced substantial evidence
to suggest that the victim hallucinated the sexual encounter.” The State then presented two
witnesses who each testified that Koo had raped her during a medical appointment. On
appeal, a panel of this Court reviewed the defense opening argument, cross-examination, and
closing argument and concluded: “Clearly, the defense had presented a specific factual claim
of hallucination that the prosecution was entitled to rebut with evidence of prior misconduct.”
Id. at 102.
In Burgett v. State, 758 N.E.2d 571 (Ind. Ct. App. 2001), trans. denied, the State had
presented evidence of an attempted murder defendant’s drug and gang activity. In
considering whether the admission of the evidence was an abuse of discretion, a panel of this
Court acknowledged that “the exceptions in Evid. R. 404(b) are only available when a
defendant goes beyond merely denying the charged crimes and affirmatively presents a
specific claim contrary to the charge,” and further acknowledged that the defendant did not
present any evidence at trial. Id. at 580. However, the Court observed that Burgett’s counsel
had presented a specific claim contrary to the charge by insinuating, during cross-
9
examination, that the victim lied to avenge his friend’s death when he testified that Burgett
was the person who shot him. Id. Consequently, no abuse of discretion was found. Id.Finally, the trial court relied upon Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App.
2004), trans. denied. Bryant was convicted of murdering his step-mother and, on appeal,
challenged the trial court’s admission of violent rap lyrics Bryant had either composed or
plagiarized. Although it found that Bryant had failed to show that the exhibits constituted
evidence of any prior crime or misconduct, the appellate court observed that “prior
misconduct evidence may be admitted to rebut a specific factual claim raised by the
defendant” and considered the exhibits, containing reference to the police finding a body in
the trunk of a car, relevant “to rebut Bryant’s claim that [his father] murdered Carol.” Id. at
499.
Subsequent to the foregoing line of cases, our Indiana Supreme Court reaffirmed the
Wickizer “view that an expansive reading of the intent exception would be inconsistent to the
principal thrust of [Rule 404(b)] itself.” Lafayette v. State, 917 N.E.2d 660, 663 (Ind. 2009).
The Court clarified that the “intent exception [is to] be narrowly construed.” Id. at 664.
In opening statements, Duvall’s counsel introduced a theory that Alan caused his own
death and the State seized the opportunity to offer evidence of an alleged prior poisoning,
reasoning that the defense had made a “very specific contrary claim” of how Alan’s death
occurred. (Tr. 322.) However, consistent with our Indiana Supreme Court’s guidance, we
cannot conclude that the intent exception of Rule 404(b) is to be read so broadly. Wickizer,
evincing a narrow construction of the intent exception, specified that it is when a defendant
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asserts a particular contrary intent that the State may respond with prior acts (to the extent
genuinely relevant) to prove intent at the time of the charged offense. 626 N.E.2d at 799.
Counsel’s references, in opening statements, suggesting that Alan died by his own hand did
not admit that Duvall engaged in the conduct at issue and then assert a particular non-
criminal intent. For example, the defense did not concede that Duvall gave Alan drugs but
only for therapeutic reasons. Nor did the defense “introduce substantial evidence” of a
contrary factual scenario, as in Koo. Duvall did not, in opening statements, open the door to
a broad application of the intent exception.
Nonetheless, “[t]he improper admission is harmless error if the conviction is
supported by substantial independent evidence of guilt satisfying the reviewing court there is
no substantial likelihood the challenged evidence contributed to the conviction.” Turner v.
State, 953 N.E.2d 1039, 1059 (Ind. 2011). Here, the State presented substantial evidence of
Duvall’s guilt.
Duvall, who was under great financial stress, had complained frequently to her
friends, co-workers, and daughter that Alan was unreliable and did not contribute adequately
to family finances. Days before Alan’s death, Duvall prevailed upon him to obtain a life
insurance policy in the amount of $100,000. She was the beneficiary. Alan had told his
friends and co-workers that he and Duvall were reconciling; meanwhile, Duvall had told her
friend and daughter that there would be no reconciliation. According to the testimony of
Rhonda Brown (“Rhonda”), Duvall had told Rhonda that she wanted to be with Ruddell.
Also, Duvall’s daughter was adamantly opposed to Alan’s moving back with Duvall.
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Rhonda further testified that Duvall had shown her small round yellow pills, claiming
that she had seen a cousin give Alan the pills, and wondering aloud if “he took the whole
bottle, would you die.” (Tr. 1315.) Duvall had also warned Rhonda not to tell Alan that the
policy he was procuring was for life insurance as opposed to mortgage insurance.
Thompson testified that she was Alan’s cousin and had hosted the Duvalls at a block
party shortly before Alan’s death. Thompson habitually left her medications, including a
very large bottle of Flexeril, on a table inside her front door. After the party, the bottle of
Flexeril appeared less full. She denied offering Alan Flexeril from that bottle and testified
that she had never seen Alan take a prescription or illicit drug.
Charles Rose (“Rose”) testified that he had been working at Miller’s Merry Manor as
a charge nurse on March 2, 2007, when he had absent-mindedly left a nearly-full bottle of
Roxanol on a hospice patient’s bedside table. When he went to retrieve it after lunch, Duvall
was “the only staff member present” and the bottle was missing. (Tr. 1426.) When
questioned, Duvall had responded that she had not seen the bottle but had seen the patient’s
daughter in the room. According to Rose, he “kind of knew better” because the daughter was
a teacher who never visited during the daytime. (Tr. 1434.)
Additionally, testimony from various investigators, friends, acquaintances, and family
members established that Duvall had given many conflicting versions of the circumstances
surrounding Alan’s death. During the initial investigation, Duvall claimed to have placed the
8:00 a.m. 9-1-1 call as soon as she returned home and opened the door to see Alan slumped
over. However, Duvall had chatted with convenience store clerk Kim Foster as Foster
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opened the store sometime before 7:00 a.m. and, when Foster expressed concern for Duvall,
Duvall told Foster that she had discovered her husband dead in a lounge chair. Ruddell
testified that, during his 7:30 a.m. call with Duvall, she told him she was tying up her dogs
and Alan was “unconscious.” (Tr. 2122.) Duvall’s neighbors testified that, around 7:00,
Duvall had come to their door but left without waiting for a response to her knock. Jennifer
Melton then looked out the window and saw that Duvall was in the back yard trying to tie up
her dogs. When Duvall was confronted with phone records suggesting a significant delay
after she arrived home and before the 9-1-1 call, Duvall admitted to making some calls but
claimed to have been in shock.
After Alan’s death, Duvall opposed an autopsy. She arranged to have his body
cremated, although Alan had a burial plot. According to Duvall’s daughter, Duvall had been
upset about the delay in the cremation. Duvall told Detective Kruchten that she had served
Alan some Long Island iced teas on the evening before his death. She told Alan’s former
girlfriend, Mary Beth Kahle, that Alan had not been drinking at all, then conceded that he had
one beer and one shot. She told her son that she and Alan had been drinking tequila the night
before his death. During the insurance investigation, Duvall insisted that Alan had initiated
the life insurance purchase.
Eventually, Duvall provided investigators with scenarios under which Alan had both
Roxanol and Flexeril in his possession. However, persons familiar with Alan’s habits
uniformly denied that he was willing to ingest either a prescription or non-prescription drug.
Moreover, police officers testified that neither Roxanol nor Flexeril was a drug typically
13
abused or available for street purchase. Evidence showed that Duvall had been in the
proximity of both drugs shortly before Alan’s death.
In light of the substantial independent evidence of Duvall’s guilt, we conclude that
there is not a substantial likelihood that the challenged evidence contributed to the verdict.
II. Admission of Evidence – Missing Roxanol
Duvall also claims that the trial court admitted Rose’s testimony as to the missing
Roxanol in contravention of Evidence Rule 404(b) and “the conditional relevance standard of
Evidence Rule 104(b).” Appellant’s Brief at 26. According to Duvall, the evidence that she
“stole liquid morphine from Miller’s Merry Manor is tenuous at best.” Appellant’s Brief at
26. She emphasizes the testimony of director of nursing Robyn Sams, who stated that she
“decided to mark the bottle as spilled” and admitted that she could not prove where it went.
(Tr. 1509.)
At the time of Rose’s testimony, Duvall lodged no contemporaneous objection. The
defendant’s failure to lodge a contemporaneous objection at the time evidence is introduced
at trial results in waiver of the error on appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind.
2010), reh’g denied. “The purpose of this rule is to allow the trial judge to consider the issue
in light of any fresh developments and also to correct any errors.” Id. A claim that has been
thus waived can be reviewed on appeal if the reviewing court determines that a fundamental
error occurred. Id. The fundamental error exception is ‘“extremely narrow, and applies only
when the error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental due process.”’
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Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The exception is available
only in ‘“egregious circumstances.”’ Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068
(Ind. 2003)).
Pathologist Dr. Greg Brown testified that Alan died of an overdose of morphine.
Accordingly, Rose’s testimony was admitted for a purpose other than to show that Duvall had
a propensity to engage in crime; specifically, it was admissible to show that Duvall had
access to the murder weapon. See Pickens v. State, 764 N.E.2d 295, 299 (Ind. Ct. App.
2002) (evidence that police saw an assault rifle in the defendant’s parents’ home two years
before murder was admissible as evidence that defendant had access to weapon of the type
used in the murder), trans. denied.
“But before a defendant’s alleged prior misconduct evidence can be admitted for a
permissible purpose under Rule 404(b), there must be sufficient proof from which a jury
could find that the defendant committed the prior acts in question.” Perry v. State, 956
N.E.2d 41, 59 (Ind. Ct. App. 2011) (citing Camm, 908 N.E.2d at 223-24). In other words,
‘“similar act evidence is relevant only if the jury can reasonably conclude that the act
occurred and that the defendant was the actor.”’ Id. (quoting Huddleston v. United States,
485 U.S. 681, 689 (1988)).
Relevant evidence is that evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid. R. 401. Only relevant evidence is admissible
at trial. Evid. R. 402. Testimony that Roxanol went missing at Miller’s Merry Manor is
15
relevant to the issue of whether Duvall committed murder by morphine only if Duvall had
access to the particular missing drug and then took it. “When conflicting evidence persists
about a person’s involvement in Rule 404(b) specific acts, the question is one of conditional
relevance, which is governed by Rule 104(b).” Camm, 908 N.E.2d at 223. According to
Rule 104(b):
When the relevancy of evidence depends upon the fulfillment of a condition of
fact, the Court shall admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the condition.
“Whether Rule 104(b) should result in the exclusion of evidence depends upon whether ‘the
fact upon which the evidence depends is too speculative’ at the time a party seeks
introduction of the evidence.” Granger, 946 N.E.2d at 1216 (citing Cox v. State, 696 N.E.2d
853, 861 (Ind. 1998)). Evidence of uncharged conduct is admissible under Rule 104(b) if
there is likely to be sufficient proof for a reasonable jury to find the uncharged conduct
proven by a preponderance of the evidence. Camm, 908 N.E.2d at 224. Sufficiency of the
evidence under 104(b) is reviewed for an abuse of discretion. Cox, 696 N.E.2d at 861.
As a predicate, the State introduced evidence of Duvall’s access to the premises.
However, as a certified nurse’s aide, Duvall was not permitted authorized access to patient
drugs, and so the State necessarily alleged a theft. Rose testified that Duvall was working
with him on March 2, 2007 on a particular ward that housed a hospice patient who had been
prescribed Roxanol. Rita Bell (“Bell”), a nurse then working as a nurse’s aide, was also on
duty. Rose testified that, when he and Bell left to go to the dining room, Duvall was left
behind to serve lunch to bedridden patients. Bell also testified that she had worked with
16
Duvall on the day in question. Bell had seen a bottle of Roxanol on a patient’s table, but did
not pick it up because she was not in charge of the medicine cart on that day.4 Other
testimony indicated that, when Duvall was questioned as to the missing Roxanol, she gave a
suspicious account of a daytime visitor. The State presented sufficient evidence from which
the trial court could have found that there was likely to be sufficient proof for a reasonable
jury to find Duvall’s theft proven by a preponderance of the evidence.
Indiana Evidence Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.
All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the
Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered
evidence against the likely unfair prejudicial impact of that evidence. Carter v. State, 766
N.E.2d 377, 382 (Ind. 2002) (citing Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)).
“When determining the likely unfair prejudicial impact, courts will look for the dangers that
the jury will (1) substantially overestimate the value of the evidence or (2) that the evidence
will arouse or inflame the passions or sympathies of the jury.” Id. (citing Evans v. State, 643
N.E.2d 877, 880 (Ind. 1994)).
The value of evidence that Duvall had access to the murder weapon, a rare form of
morphine typically used for palliative care for dying patients, was high. Moreover, the access
had been in recent proximity to Alan’s death. The admission of such evidence was not
4
Bell was licensed as a nurse, but was working a shift as a certified nurse’s aide on that particular day.
17
unfairly prejudicial. The trial court did not abuse its discretion and did not commit
fundamental error by allowing Rose to testify regarding missing Roxanol.
III.Continuing Crimes
Finally, Duvall argues that the continuing crime doctrine is applicable to her multiple
convictions for Insurance Fraud and Obstruction of Justice. “The continuing crime doctrine
essentially provides that actions that are sufficient in themselves to constitute separate
criminal offenses may be so compressed in terms of time, place, singleness of purpose, and
continuity of action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287,
296 (Ind. Ct. App. 2005), trans. denied. The continuous crime doctrine does not seek to
reconcile the double jeopardy implications of two distinct chargeable crimes, but rather
defines those instances where a defendant’s conduct amounts to only a single chargeable
crime. Id.Duvall’s convictions for Insurance Fraud stem from six false statements given in a
single insurance investigation interview on May 29, 2008. Her three convictions for
Obstruction of Justice stem from a single crime scene clean-up (in which she removed an
alcohol bottle, medication container, and foam from Alan’s mouth) on August 24, 2007. The
State concedes – and we agree – that Duvall’s conduct was continuous so as to constitute one
offense of Insurance Fraud and one offense of Obstruction of Justice.
Conclusion
The trial court did not commit reversible error or fundamental error in the admission
of evidence and therefore we affirm the murder conviction. However, because Duvall’s acts
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constitute a single chargeable offense under the continuing crime doctrine, we affirm one
conviction each for Insurance Fraud and Obstruction of Justice, but reverse and remand with
instructions to vacate the remaining five convictions for Insurance Fraud and the remaining
two convictions for Obstruction of Justice.
Affirmed in part, reversed in part, and remanded with instructions.
RILEY, J., and CRONE, J., concur.
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